Q & A: US Targeted Killings and International Law

Following the attacks against the United States on September 11, 2001, President George W. Bush began a campaign of “targeted killings” against suspected members of al Qaeda and other armed groups. It has continued under the administration of President Barack Obama.

This Q&A focuses on legal and policy issues related to targeted killings, primarily attacks using unmanned aerial vehicles, known as drones, conducted by the US Armed Forces and the Central Intelligence Agency (CIA). Human Rights Watch raised many of the issues addressed here in a December 2010 letter to President Obama.

Human Rights Watch calls upon the US government to clarify fully and publicly its legal rationale for conducting targeted killings and the legal limits on such strikes. To date it has not done so, which raises broader concerns, including among US allies, about the lawfulness of its actions and creates a dangerous model that may be followed by abusive governments. The government should explain why its attacks are in conformity with all applicable international law and make public information, including video footage, on how particular attacks comply with those standards. To ensure compliance with international law, the US government should conduct investigations of targeted killings where there is credible evidence of wrongdoing, provide compensation to all victims of unlawful attacks, and discipline or prosecute as appropriate those responsible for conducting or ordering illegal strikes. So long as the US does not demonstrate a readiness to hold the CIA to international legal requirements for accountability and redress, only the US armed forces should have command responsibility to conduct attacks using drones.

In recent years the phrase “targeted killing” has commonly been used to refer to a deliberate lethal attack by government forces against a specific individual not in custody under the color of law. It is not a technical legal term. Depending on the circumstances, a particular targeted killing may or may not be lawful under international law. For instance, a sniper shooting at an enemy general on the battlefield would normally be a lawful targeted killing. Targeted killings should be considered distinctly from the summary execution of anyone in custody, which is never lawful.

2. What international law is applicable to targeted killings?

The lawfulness of a targeted killing hinges in part on the applicable law, which is determined by the context in which it takes place. International humanitarian law (also known as the laws of war) is applicable during armed conflicts, whether between states or between a state and non-state armed groups. Hostilities between a state and an armed group are generally considered to be an armed conflict when violence reaches a significant threshold and the armed group has the capacity to abide by the laws of war. Rules of international humanitarian law are found in the Geneva Conventions of 1949 and its two Additional Protocols, the 1907 Hague Regulations, and the customary laws of war. Among other things, these rules regulate the conduct of hostilities, including the targeting of combatants, in all armed conflicts.

International human rights law is applicable at all times, but during armed conflict it may be superseded by the laws of war. International human rights law can be found in treaties such as the International Covenant on Civil and Political Rights and authoritative standards such as the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Human rights law upholds the right to life and provides rules for law enforcement on when the use of lethal force is permissible. Outside of armed conflict, lethal force may only be used when strictly necessary to prevent imminent harm to life, when arrest is not reasonably possible.

3. What are the laws of war on targeted killings?

The laws of war permit attacks only against military objectives, such as enemy fighters or weapons and ammunition. Civilians are immune from attack, except those individuals “directly participating in the hostilities.” While the phrase “directly participating in hostilities” has various interpretations, it is generally accepted to include not only persons currently engaged in fighting, but also individuals actively planning or directing future military operations. For a specific attack on a military objective to be lawful, it must discriminate between combatants and civilians, and the expected loss of civilian life or property cannot be disproportionate to the anticipated military gain of the attack. Therefore, not all attacks that cause civilian deaths violate the laws of war, only those that target civilians, are indiscriminate or cause disproportionate civilian loss.

Parties to a conflict have a duty to investigate serious violations of the laws of war. The Geneva Conventions state that “[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” Where there is credible evidence that an attack has violated the laws of war, the responsible party is obligated to investigate for possible war crimes and appropriately prosecute the perpetrators, or extradite them for prosecution elsewhere.

4. What is the international human rights law on targeted killings?

International human rights law permits the use of lethal force outside of armed conflict situations if it is strictly and directly necessary to save human life. In particular, the use of lethal force is lawful if the targeted individual presents an imminent threat to life and less extreme means, such as capture or non-lethal incapacitation, are insufficient to address that threat. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides that the “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” This standard permits using firearms only in self-defense or defense of others “against the imminent threat of death or serious injury” or “to prevent the perpetration of a particularly serious crime involving grave threat to life” and “only when less extreme means are insufficient to achieve these objectives.” Under this standard, individuals cannot be targeted for lethal attack merely because of past unlawful behavior, but only for imminent or other grave threats to life when arrest is not a reasonable possibility.

Where there is evidence that a targeted killing might have violated international human rights standards, a state has an obligation to investigate. For instance, the UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions state that “[t]here shall be thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death.”

5. How many people have US forces killed in targeted killings in recent years?

There is no concrete, verifiable number of deaths from US targeted killings. The New America Foundation, which bases its figures on local and international media accounts, conducted a study of reported US drone strikes in northern Pakistan from 2004 to 2011, and concluded that the attacks killed between 1,680 and 2,634 alleged militants and civilians. Other independent monitors, such as the Bureau for Investigative Journalism, have provided similar figures.

US counterterrorism officials stated in May 2010 that since 2008 roughly 530 people had been killed in Pakistan by drone strikes, of whom more than 500 were “militants,” and “no more than 30” were civilians. This figure does not include US targeted killings before 2008; those in Yemen, where the media and Yemeni and US officials have reported dozens killed in at least 20 drone or other airstrikes since 2002; and those killed in other countries, such as Afghanistan and Somalia. In an August 2011 news article, unidentified CIA officers reportedly said that since May 2010 drones had killed more than 600 militants. Earlier in the year, John Brennan, President Obama’s chief counterterrorism advisor, announced without corroborating information that in the preceding 12 months there had not been a single civilian death in drone strikes because of the “exceptional proficiency, precision of the capabilities we’ve been able to develop.”

6. Does using aerial drones in targeted killings affect the legal regime involved?

The use of unmanned aircraft or drones for targeted killings does not directly affect the legal analysis of a particular attack. Drones themselves and their weaponry of missiles and laser-guided bombs are not illegal weapons under the laws of war – they can be used lawfully or unlawfully depending on the circumstances. When used appropriately, drones offer certain advantages over manned aircraft or cruise missiles that can help to minimize civilian casualties in combat operations. Drones have enhanced surveillance capabilities that allow them to linger with a view of the target for long periods without risk to human operators. Drone operators are thus in theory better equipped to distinguish valid military targets from civilians who are immune from attack. As with other aerial attacks, drone operations may be hampered by poor intelligence or local actors’ manipulation, especially when operating outside of areas where US ground forces can direct them.

To date, the United States is known to have carried out targeted killings using drones in Afghanistan, Iraq, Libya, Pakistan, Somalia, and Yemen. Some 40 other countries also possess basic drone technology, and the number is expected to expand significantly in coming years. Those drones are primarily used for surveillance. China, France, Germany, India, Iran, Israel, Italy, Russia, Turkey, and the United Kingdom either have or are currently seeking drones with attack capacity.

7. How has the US carried out targeted killings in Pakistan?

Aerial drone strikes by the US on suspected members of al Qaeda and the Taliban in northern Pakistan have been conducted at least since 2004, although the US does not officially acknowledge them. They escalated in 2011, with some 60 strikes taking place through the end of September. These strikes were carried out primarily by the CIA. It is not known to what extent they are hitting military targets in battle zones, causing disproportionate civilian loss compared to the expected military gain, or using lethal force in what are more properly law enforcement situations. As in previous years, these strikes were often accompanied by claims from local sources of large numbers of civilian casualties, but a lack of secure access to the areas has prevented independent verification. At the same time, the US government has made unverified claims that there have been no civilian casualties in the attacks. The US has not provided information – such as videotapes taken by drones of attacks – that would demonstrate the lawfulness of the attacks or refute claims of civilian casualties.

8. How has the US carried out targeted killings in Yemen?

The US reportedly has conducted at least 20 drone strikes and other aerial attacks against alleged al Qaeda militants and other Islamist forces in Yemen from 2002 through November 2011. In the first known strike, in November 2002, a CIA drone-launched missile killed Qaed Salim Sinan al-Harethi, a Yemeni suspected of masterminding the bombing of the USS Cole, which had claimed the lives of 17 US sailors two years earlier. The other known strikes were carried out under the Obama administration, mostly in 2011. These strikes, attributed to the CIA and US special operations forces, have reportedly killed scores of people. Lack of access to the attack sites has prevented independent verification of the strikes, including whether those targeted were lawfully subject to attack, the numbers of civilians killed or wounded, and the circumstances of the civilian casualties. A Yemeni parliamentary inquiry found that a US cruise missile strike in December 2009 killed at least 41 local residents, including 14 women and 21 children. It allegedly involved cluster munitions, a weapon that poses unacceptable risks in civilian areas because of its indiscriminate nature. In September 2011 the US reportedly began launching drone strikes on targets in Yemen from a new CIA base in an undisclosed location on the Arabian Peninsula.

9. How has the US carried out targeted killings in Somalia?

The US government has conducted targeted airstrikes against alleged al Qaeda members in Somalia since 2006. At his confirmation hearing in June 2011, Vice Adm. William McRaven of the US Special Operations Command saidthat there was a need for greater use of drones in Somalia to enhance the chance of successful strikes. Beginning that month, the US initiated drone attacks on suspected members of the Islamist armed group al-Shabaab, which is fighting the US-backed Transitional Federal Government. On June 23, in the only publicly acknowledged attack, the US conducted a drone strike targeting two high-ranking members of al-Shabaab who allegedly had "direct ties" to American cleric Anwar al-Awlaki in Yemen (see below). There have been reports of new drone attacks since June, yet corroborating these reports has been particularly difficult because all have been reported in al-Shabaab-controlled areas where access and communication is severely restricted. The US confirmed that it has refurbished an airbase at Arba Minch in southern Ethiopia for the purpose of launching drones to fly over Somalia, although it claimed the flights were for surveillance purposes only. The US also reportedly operates drone missions over Somalia from a base in the Seychelles, an archipelago in the Indian Ocean.

10. What has been the US rationale for targeted killings?

Through public statements by senior officials, the Obama administration has provided an outline of its legal authority for conducting targeted killings. The essence of its argument is that targeted killings of those associated with al Qaeda are lawful in general, because the US is justified in going to war in self-defense (an argument about the legal justification for war). However, the administration has yet to clearly explain how it would assess the legality of any specific attack against a particular individual under international humanitarian law (the law governing the conduct of war).

State Department legal adviser Harold Koh told the American Society of International Law in March 2010 that the United States is in an ongoing armed conflict with al Qaeda, and so has the authority under the laws of war to use lethal force against al Qaeda members and associated forces. He noted that whether a particular individual will be targeted in a particular location would depend upon specific considerations, including “the willingness and ability of those states to suppress the threat the target poses.” Koh said that in targeted killings and other operations against al Qaeda and its affiliates, “great care is taken to adhere to [international humanitarian law] principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage [civilian casualties] is kept to a minimum.”

John Brennan, the administration’s counterterrorism advisor, expanded on these arguments in a speech at Harvard University in September 2011. He argued for “a more flexible understanding of ‘imminence’” to justify a military response to the threat posed by terrorist groups. He said that being at war with al Qaeda “does not mean we can use military force whenever we want, wherever we want”; respect for a state’s sovereignty and the laws of war also restrict the way force is used abroad.

Neither Koh nor Brennan provided details that would lend insight into the process for determining whether specific strikes met international legal standards, particularly with respect to CIA-led operations. They also did not set out the administration’s definition of “associated forces,” and no mention was made of the constraints imposed by international human rights law.

The administration’s approach, while ostensibly rejecting the “global war on terror” pronounced by President Bush, appears to tacitly accept the concept in conducting targeted killings. Asserting that all such attacks – regardless of the locale or the target’s lawfulness – necessarily fall within the rubric of international humanitarian law is problematic. The applicability of international humanitarian law, which requires an armed conflict situation, must be determined on a case-by case basis. This may be clear on a traditional battlefield, but where that is not the case, the determination will be more complex. For a government to act on the assumption that international humanitarian law always applies – effectively making all the world a battlefield and summarily rejecting international human rights law – will undermine international legal protections.

11. Was the targeted killing of Anwar al-Awlaki in Yemen lawful?

In September 2011, US drone-launched missiles killed Anwar al-Awlaki, a US citizen of Yemeni descent, and three other alleged al Qaeda members who were traveling by car in northern Yemen's al Jawf province. Awlaki had been sought by Yemeni authorities since November 2010 for plotting to kill foreigners and being a member of al Qaeda. Also killed in the attack was Samir Khan, a US citizen who was the editor of al Qaeda’s English-language magazine, Inspire. In a separate drone incident two weeks later, Awlaki’s 16-year-old son, Abdelrahman al-Awlaki, was killed in an attack targeting another alleged al Qaeda militant.

After the attack, President Obama for the first time referred to Awlaki as the “leader of external operations” for al Qaeda in Yemen, but US authorities had never charged him with any terrorism-related crime. A senior Obama administration official reportedly said that the killing of Awlaki was important both because he had become al Qaeda’s greatest English-language propagandist and because he had emerged as one of its top operational planners. “First and foremost, we’ve been looking at his important operational role,” the official said. “To the extent he’s no longer playing that role is all to the good.”

The United States may be engaged in an armed conflict in Yemen during which it would be permitted to target combatants. However, even if that were the case, the attack on Awlaki might not have been lawful because under the laws of war a “propagandist” is not a valid military target and attacking him on that basis would be prohibited. On the other hand, an individual actively involved in operational planning would be a valid military target – but not if he played an operational role only in the past. The US should make clear what information supported its rationale that Awlaki was playing an ongoing operational role in a battle zone and thus could be lawfully attacked.

The New York Times reported that the Obama administration considered the killing of Awlaki to be consistent with a legal opinion drafted in mid-2010 by the Office of Legal Counsel, the section of the Justice Department that provides legal advice to the executive branch. The administration should release the legal opinion, or otherwise disclose its analysis of the applicable international law in targeted killings and the manner by which individuals are determined to be lawful targets of attack. To date, the administration has refused to confirm or deny the existence of the legal opinion.

12. Does the US citizenship of those targeted affect the legality of attacks?

The US citizenship of Anwar al-Awlaki and other Americans killed in targeted strikes is not relevant as a matter of international law. Neither international humanitarian law nor international human rights law makes a distinction regarding nationality with respect to targeting or the use of force. Awlaki’s citizenship may have offered him greater US constitutional protections, an issue reportedly addressed in the Justice Department legal memo. In August 2010, the Center for Constitutional Rights and the American Civil Liberties Union brought a suit in US federal court on behalf of Awlaki’s father contesting the lawfulness of the Obama administration’s inclusion of Awlaki on a CIA “hit list.” The court threw out the case on procedural grounds but indicated it would have dismissed the petitioner’s claim in any event because it raised political questions not subject to the court’s review.

13. What steps should the US take to reduce the likelihood of unlawful targeted killings?

The US government should both clarify its general legal approach to targeted killings and provide information on individual attacks. That would mean releasing Justice Department legal memos on targeted killings, such as the reported Justice Department memo accepting the inclusion of Anwar al-Awlaki on the US “hit list.” Evidence from specific attacks, such as drone videotapes, after-action reports and other information that would be relevant to the legality of an attack should also be released. Information should be redacted only as necessary to protect intelligence methods and sources.

The US government should make not only pre-strike but also post-strike assessments of civilian harm, factor those assessments into planning for future strikes, and publicly acknowledge responsibility for harm when it occurs. Where there is a finding of wrongdoing, individuals responsible for conducting or ordering unlawful attacks should be promptly investigated and disciplined or prosecuted as appropriate.

14. What concerns are raised by the CIA’s involvement in targeted killings?

The CIA was involved early on in the US targeted killing program after 9/11. Its role has increased with the Obama administration’s expansion of the use of drone attacks in northern Pakistan and other countries. While openly referring to CIA involvement, the US government continues to consider it classified and therefore will not acknowledge CIA participation in attacks. This widened CIA role in what are considered to be military operations governed by the laws of war has been controversial. In 2004 the independent 9/11 Commission specifically recommended that “[l]ead responsibility for directing and executing paramilitary operations, whether clandestine or covert, should shift to the Defense Department,” where the “training, direction, and execution of such operations” are already being consolidated under a single military command.

International humanitarian law does not prohibit intelligence agencies from participating in combat operations during armed conflicts. Parties to an armed conflict, however, have an obligation to investigate credible allegations of war crimes and provide redress for victims. Because the US government routinely “neither confirms nor denies” the CIA’s well-known participation in targeted killings, there is no transparency in its operations. In 2009, then-CIA chief Leon Panetta unusually acknowledged the airstrikes against al Qaeda leaders in Pakistan as being “very effective” because they are “very precise” and “very limited in terms of collateral damage” [civilian casualties]. However, he also said he would not provide more details about the operations, highlighting the government’s unwillingness to divulge information about CIA operations.

The CIA, like all US government agencies, is bound by international human rights and humanitarian law. Unlike the US armed forces, the CIA has provided little or no information regarding the training and composition of its drone teams, or the procedures and rules it follows in conducting targeted killings. Nor has the government provided information as to whether the CIA has conducted any investigations into possible international law violations and their outcomes. As a result there is no basis for determining whether the US government is actually meeting its international legal obligations with respect to CIA targeting operations or providing redress for victims of unlawful attacks. Repeated assertions by senior US officials that all US agencies are operating in compliance with international law – without providing information that would corroborate such claims – is wholly inadequate.

The only known domestic investigation into the CIA role in targeted killings appears intended to reduce transparency. In November 2011, the media reportedthat the Justice Department was investigating former CIA general counsel John Rizzo for allegedly revealing classified information in a February Newsweek interviewabout the CIA’s targeted killing program. This inquiry is likely only to curtail needed public discussion of CIA practices.

So long as the US government is unwilling to demonstrate that the CIA is held to international legal requirements for accountability and redress, the use of drones in attacks should be exclusively within the command responsibility of the US armed forces.

15. What is the US military’s record for ensuring accountability in airstrikes?
In recent years the US military and other foreign forces in Afghanistan have succeeded in reducing the proportion of civilian casualties in their operations, but because of increased operations the total number of civilian deaths has only showed a small decline. The US has provided inadequate or inaccurate information regarding incidents in which large numbers of civilian casualties were reported, particularly aerial attacks involving US ground forces. In a number of cases US forces had immediately claimed, before there could be any serious investigation of the incident, that all those killed were Taliban combatants. Only after information gathered on the ground by local and international human rights organizations and journalists was presented to US authorities did the Defense Department conduct more credible investigations.

Afghan government and popular outrage led the US military to acknowledge the harm to US policy caused by civilian casualties. Adm. Mike Mullen, then chairman of the Joint Chiefs of Staff, said in 2010 that “civilian casualty incidents such as those we've recently seen in Afghanistan will hurt us more in the long run than any tactical success we may achieve against the enemy.” Unlike the CIA, the US armed forces have a known internal disciplinary system that can enforce compliance with international humanitarian law and a conventional chain of command for investigating credible allegations of laws-of-war violations.

16. What are the global implications of the US targeted killing program?

In asserting that targeted attacks on alleged anti-US militants anywhere in the world are lawful, the US undermines the international rules it helped craft over the past half-century that bar extra-legal killings. This sets a dangerous precedent for abusive regimes around the globe to conduct drone attacks or other strikes against anyone they label as terrorists or militants and undercuts the ability of the US to criticize such attacks.

Administration counterterrorism advisor John Brennan’s Harvard speech made a distinction between the US and its allies over the geographic scope of the conflict against al Qaeda. He said that while some US allies believe the conflict against al Qaeda is limited geographically to “hot” battlefields, the US considers the conflict to be without geographic limits. His assertion that the US restricts such attacks to countries that are unwilling or unable to apprehend those on their territory deemed to be al Qaeda militants is not recognizing a constraint under law but merely an expression of US policy.

Were the US rationale for its global battlefield for targeted killings to be applied by other countries, China might declare an ethnic Uighur activist living in New York City an “enemy combatant” and, if the US were unwilling to apprehend that person, order a lethal strike on US soil. Russia could assert the legality of fatally poisoning someone living in London whom it claims is linked to Chechen militants. While the Obama administration would oppose such actions, it has yet to lay out a legal rationale for drone strikes or other deliberate uses of lethal force in countries such as Yemen and Pakistan that would distinguish them from targeted killings widely considered unlawful. The US should not carry out lethal strikes that it would object to if another country conducted such a strike under analogous circumstances with a similar rationale.

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